Intelligence with the enemy

A 17th-century illustration of the leaders of the Gunpowder Plot, a failed assassination attempt against James I of England.

Treason is the crime of attacking a state authority to which one owes allegiance.^[1] This typically includes acts such as participating in a war against one's native country, attempting to overthrow its government, spying on its military, its diplomats, or its secret services for a hostile and foreign power, or attempting to kill its head of state. A person who commits treason is known in law as a traitor.^[2]

Historically, in common law countries, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife or that of a master by his servant. Treason (i.e. disloyalty) against one's monarch was known as high treason and treason against a lesser superior was petty treason. As jurisdictions around the world abolished petty treason, "treason" came to refer to what was historically known as high treason.

At times, the term traitor has been used as a political epithet, regardless of any verifiable treasonable action. In a civil war or insurrection, the winners may deem the losers to be traitors. Likewise the term traitor is used in heated political discussion – typically as a slur against political dissidents, or against officials in power who are perceived as failing to act in the best interest of their constituents. In certain cases, as with the Dolchstoßlegende (stab-in-the-back myth), the accusation of treason towards a large group of people can be a unifying political message.

History

In English law, high treason was punishable by being hanged, drawn and quartered (men) or burnt at the stake (women), although beheading could be substituted by royal command (usually for royalty and nobility). Those penalties were abolished in 1814, 1790 and 1973 respectively. The penalty was used by later monarchs against people who could reasonably be called traitors. Many of them would now just be considered dissidents.^[3]

Christian theology and political thinking until after the Enlightenment considered treason and blasphemy synonymous, as it challenged both the state and the will of God. Kings were considered chosen by God,^[4] and to betray one's country was to do the work of Satan.^{[citation needed]}

The words "treason" and "traitor" are derived from the Latin tradere, "to deliver or hand over".^[5] Specifically, it is derived from the term "traditors", which refers to bishops and other Christians who turned over sacred scriptures or betrayed their fellow Christians to the Roman authorities under threat of persecution during the Diocletianic Persecution between AD 303 and 305.

Originally, the crime of treason was conceived of as being committed against the monarch; a subject failing in his duty of loyalty to the sovereign and acting against the sovereign was deemed to be a traitor. Queens Anne Boleyn and Catherine Howard were executed for treason for adultery against Henry VIII, although most historians regard the evidence against Anne Boleyn and her alleged lovers to be dubious. As asserted in the 18th century trial of Johann Friedrich Struensee in Denmark, a man having sexual relations with a queen can be considered guilty not only of ordinary adultery but also of treason against her husband, the king.

The English Revolution in the 17th century and the French Revolution in the 18th century introduced a radically different concept of loyalty and treason, under which sovereignty resides with "The Nation" or "The People" - to whom also the monarch has a duty of loyalty, and for failing which the monarch, too, could be accused of treason. Charles I in England and Louis XVI in France were found guilty of such treason and duly executed. However, when Charles II was restored to his throne, he considered the revolutionaries who sentenced his father to death as having been traitors in the more traditional sense.

In medieval times, most treason cases were in the context of a kingdom's internal politics. Though helping a foreign monarch against one's own sovereign would also count as treason, such were only a minority among treason cases. Conversely, in modern times, "traitor" and "treason" are mainly used with reference to a person helping an enemy in time of war or conflict.

During the American Revolution, a slave named Billy was sentenced to death on charges of treason to Virginia for having joined the British in their war against the American colonists - but was eventually pardoned by Thomas Jefferson, then Governor of Virginia. Jefferson accepted the argument, put forward by Billy's well-wishers, that - not being a citizen and not enjoying any of the benefits of being one - Billy owed no loyalty to Virginia and therefore had committed no treason.^[6] This was a ground-breaking case, since in earlier similar cases slaves were found guilty of treason and executed.

Under very different circumstances, a similar defense was put forward in the case of William Joyce, nicknamed Lord Haw-Haw, who had broadcast Nazi propaganda to the UK from Germany during the Second World War.^[7] Joyce's defence team, appointed by the court, argued that, as an American citizen and naturalised German, Joyce could not be convicted of treason against the British Crown. However, the prosecution successfully argued that, since he had incorrectly stated his nationality to obtain a British passport and voted in Britain, Joyce did owe allegiance to the king. Thus, Joyce was convicted of treason, and was eventually hanged.^[8]

After Napoleon fell from power for the first time, Marshal Michel Ney swore allegiance to the restored King Louis XVIII, but when the Emperor escaped from Elba, Ney resumed his Napoleonic allegiance, and commanded the French troops at the Battle of Waterloo. After Napoleon was defeated, dethroned, and exiled for the second time in the summer of 1815, Ney was arrested and tried for treason by the Chamber of Peers. In order to save Ney's life, his lawyer André Dupin argued that as Ney's hometown of Sarrelouis had been annexed by Prussia according to the Treaty of Paris of 1815, Ney was now a Prussian, no longer owing allegiance to the King of France and therefore not liable for treason in a French court. Ney ruined his lawyer's effort by interrupting him and stating: "Je suis Français et je resterai Français!" (I am French and I will remain French!).^[9] Having refused that defence, Ney was duly found guilty of treason and executed.

Until the late 19th century, Britain - like various other countries - held to a doctrine of "perpetual allegiance to the sovereign", dating back to feudal times, under which British subjects, owing loyalty to the British monarch, remained such even if they emigrated to another country and took its citizenship. This became a hotly debated issue in the aftermath of the 1867 Fenian Rising, when Irish-Americans who had gone to Ireland to participate in the uprising and were caught were charged with treason, as the British authorities considered them to be British subjects. This outraged many Irish-Americans, to which the British responded by pointing out that, just like British law, American law also recognized perpetual allegiance.^[10] As a result, Congress passed the Expatriation Act of 1868, which granted Americans the right to freely renounce their U.S. citizenship. Britain followed suit with a similar law, and years later, signed a treaty agreeing to treat British subjects who had become U.S. citizens as no longer holding British nationality - and thus no longer liable to a charge of treason.

Many nations' laws mention various types of treason. "Crimes Related to Insurrection" is the internal treason, and may include a coup d'état. "Crimes Related to Foreign Aggression" is the treason of cooperating with foreign aggression positively regardless of the national inside and outside. "Crimes Related to Inducement of Foreign Aggression" is the crime of communicating with aliens secretly to cause foreign aggression or menace. Depending on the country, conspiracy is added to these.

In individual jurisdictions

Australia

In Australia, there are federal and state laws against treason, specifically in the states of New South Wales, South Australia and Victoria. Similarly to Treason laws in the United States, citizens of Australia owe allegiance to their sovereign at the federal and state level.

The federal law defining treason in Australia is provided under section 80.1 of the Criminal Code, contained in the schedule of the Commonwealth Criminal Code Act 1995.^[11] It defines treason as follows:

A person commits an offence, called treason, if the person:
(a) causes the death of the Sovereign, the heir apparent of the Sovereign, the consort of the Sovereign, the Governor-General or the Prime Minister; or

(b) causes harm to the Sovereign, the Governor-General or the Prime Minister resulting in the death of the Sovereign, the Governor-General or the Prime Minister; or

(c) causes harm to the Sovereign, the Governor-General or the Prime Minister, or imprisons or restrains the Sovereign, the Governor-General or the Prime Minister; or

(d) levies war, or does any act preparatory to levying war, against the Commonwealth; or

(e) engages in conduct that assists by any means whatever, with intent to assist, an enemy:
(i) at war with the Commonwealth, whether or not the existence of a state of war has been declared; and

(ii) specified by Proclamation made for the purpose of this paragraph to be an enemy at war with the Commonwealth; or

(f) engages in conduct that assists by any means whatever, with intent to assist:
(i) another country; or

(ii) an organisation;

that is engaged in armed hostilities against the Australian Defence Force; or

(g) instigates a person who is not an Australian citizen to make an armed invasion of the Commonwealth or a Territory of the Commonwealth; or

(h) forms an intention to do any act referred to in a preceding paragraph and manifests that intention by an overt act.

A person is not guilty of treason under paragraphs (e), (f) or (h) if their assistance or intended assistance is purely humanitarian in nature.

The maximum penalty for treason is life imprisonment. Section 80.1AC of the Act creates the related offence of treachery.

New South Wales

The Treason Act 1351, the Treason Act 1795 and the Treason Act 1817 form part of the law of New South Wales. The Treason Act 1795 and the Treason Act 1817 have been repealed by Section 11 of the Crimes Act 1900,^[12] except in so far as they relate to the compassing, imagining, inventing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maim, or wounding, imprisonment, or restraint of the person of the heirs and successors of King George III of the United Kingdom, and the expressing, uttering, or declaring of such compassings, imaginations, inventions, devices, or intentions, or any of them.

Section 12 of the Crimes Act 1900 (NSW) creates an offence which is derived from section 3 of the Treason Felony Act 1848:^[13]

12 Compassing etc deposition of the Sovereign–overawing Parliament etc Whosoever, within New South Wales or without, compasses, imagines, invents, devises, or intends to deprive or depose Our Most Gracious Lady the Queen, her heirs or successors, from the style, honour, or Royal name of the Imperial Crown of the United Kingdom, or of any other of Her Majesty's dominions and countries, or to levy war against Her Majesty, her heirs or successors, within any part of the United Kingdom, or any other of Her Majesty's dominions, in order, by force or constraint, to compel her or them to change her or their measures or counsels, or in order to put any force or constraint upon, or in order to intimidate or overawe, both Houses or either House of the Parliament of the United Kingdom, or the Parliament of New South Wales, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other of Her Majesty's dominions, or countries under the obeisance of Her Majesty, her heirs or successors, and expresses, utters, or declares such compassings, imaginations, inventions, devices, or intentions, or any of them, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, shall be liable to imprisonment for 25 years.

Section 16 provides that nothing in Part 2 repeals or affects anything enacted by the Treason Act 1351 (25 Edw.3 c. 2).^[14] This section reproduces section 6 of the Treason Felony Act 1848.

Victoria

The offence of treason was created by section 9A(1) of the Crimes Act 1958.^[15] It is punishable by a maximum penalty of life imprisonment.

South Australia

In South Australia, treason is defined under Section 7 of the South Australia Criminal Law Consolidation Act 1935 and punished under Section 10A. Any person convicted of treason against South Australia will receive a mandatory sentence of life imprisonment.

Brazil

According to Brazilian law, treason is the crime of disloyalty by a citizen to the Federal Republic of Brazil, applying to combatants of the Brazilian military forces. Treason during wartime is the only crime for which a person can be sentenced to death (see capital punishment in Brazil).

The only military person in the history of Brazil to be convicted of treason was Carlos Lamarca, an army captain who deserted to become the leader of a communist-terrorist guerrilla against the military government.

Canada

Section 46 of the Criminal Code has two degrees of treason, called "high treason" and "treason". However, both of these belong to the historical category of high treason, as opposed to petty treason which does not exist in Canadian law. Section 46 reads as follows:^[16]

High treason
(1) Every one commits high treason who, in Canada,

(a) kills or attempts to kill His Majesty, or does him any bodily harm tending to death or destruction, maims or wounds him, or imprisons or restrains him;

(b) levies war against Canada or does any act preparatory thereto; or

(c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.

Treason
(2) Every one commits treason who, in Canada,

(a) uses force or violence for the purpose of overthrowing the government of Canada or a province;

(b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;

(c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);

(d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or

(e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act.

It is also illegal for a Canadian citizen or a person who owes allegiance to His Majesty in right of Canada to do any of the above outside Canada.

The penalty for high treason is life imprisonment.^[17] The penalty for treason is imprisonment up to a maximum of life, or up to 14 years for conduct under subsection (2)(b) or (e) in peacetime.

Finland

Finnish law distinguishes between two types of treasonable offences: maanpetos, treachery in war, and valtiopetos, an attack against the constitutional order. The terms maanpetos and valtiopetos are unofficially translated as treason and high treason, respectively. Both are punishable by imprisonment, and if aggravated, by life imprisonment.

Maanpetos (translates literally to betrayal of land) consists in joining enemy armed forces, making war against Finland, or serving or collaborating with the enemy. Maanpetos proper can only be committed under conditions of war or the threat of war. Espionage, disclosure of a national secret, and certain other related offences are separately defined under the same rubric in the Finnish criminal code.

Valtiopetos (translates literally to betrayal of state) consists in using violence or the threat of violence, or unconstitutional means, to bring about the overthrow of the Finnish constitution or to overthrow the president, cabinet or parliament or to prevent them from performing their functions.

France

Article 411-1^[18] of the French Penal Code defines treason as follows:

The acts defined by articles 411-2 to 411–11 constitute treason where they are committed by a French national or a soldier in the service of France, and constitute espionage where they are committed by any other person.

Article 411-2 prohibits "handing over troops belonging to the French armed forces, or all or part of the national territory, to a foreign power, to a foreign organisation or to an organisation under foreign control, or to their agents". It is punishable by life imprisonment and a fine of €750,000. Generally parole is not available until 18 years of a life sentence have elapsed.^[19]

Articles 411–3 to 411–10 define various other crimes of collaboration with the enemy, sabotage, and the like. These are punishable with imprisonment for between seven and 30 years. Article 411-11 make it a crime to incite any of the above crimes.

Besides treason and espionage, there are many other crimes dealing with national security, insurrection, terrorism and so on. These are all to be found in Book IV of the code.

Germany

German law differentiates between two types of treason: "High treason" (Hochverrat) and "treason" (Landesverrat). High treason, as defined in Section 81^[20] of the German criminal code is defined as an attempt against the existence or the constitutional order of the Federal Republic of Germany that is carried out either with the use of violence or the threat of violence. It carries a penalty of life imprisonment or a fixed term of at least ten years. In less serious cases, the penalty is 1–10 years in prison. German criminal law also criminalises high treason against a German state. Preparation of either types of the crime is criminal and carries a penalty of up to five years.

The other type of treason, Landesverrat is defined in Section 94.^[21] It is roughly equivalent to espionage; more precisely, it consists of betraying a secret either directly to a foreign power, or to anyone not allowed to know of it; in the latter case, treason is only committed if the aim of the crime was explicitly to damage the Federal Republic or to favor a foreign power. The crime carries a penalty of one to fifteen years in prison. However, in especially severe cases, life imprisonment or any term of at least five years may be sentenced.

As for many crimes with substantial threats of punishment active repentance is to be considered in mitigation under §83a StGB (Section 83a, Criminal Code).

Notable cases involving Landesverrat are the Weltbühne trial during the Weimar Republic and the Spiegel scandal of 1962. On 30. July 2015, Germany's Public Prosecutor General Harald Range initiated criminal investigation proceedings against the German blog netzpolitik.org.

Hong Kong

Section 2 of the Crime Ordinance provides that levying war against the Government of the Hong Kong Special Administrative Region of the People's Republic of China, conspiring to do so, instigating a foreigner to invade Hong Kong, or assisting any public enemy at war with the HKSAR Government, is treason, punishable with life imprisonment.^[22]^[23]

Ireland

Article 39 of the Constitution of Ireland (adopted in 1937) states:

treason shall consist only in levying war against the State, or assisting any State or person or inciting or conspiring with any person to levy war against the State, or attempting by force of arms or other violent means to overthrow the organs of government established by the Constitution, or taking part or being concerned in or inciting or conspiring with any person to make or to take part or be concerned in any such attempt.^[24]

Following the enactment of the 1937 constitution, the Treason Act 1939 provided for imposition of the death penalty for treason.^[25] The Criminal Justice Act 1990 abolished the death penalty, setting the punishment for treason at life imprisonment, with parole in not less than forty years.^[26] No person has been charged under the Treason Act.^{[citation needed]} Irish republican legitimatists who refuse to recognise the legitimacy of the Republic of Ireland have been charged with lesser crimes under the Offences against the State Acts 1939–1998.

India

The Indian Penal Code has described treason in Article 121, which states that

Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine. ^[27]

Italy

The Italian law defines various types of crimes that could be generally described as treason (tradimento), although they are so many and so precisely defined that no one of them is simply called tradimento in the text of Codice Penale (Italian Criminal Code). The treason-type crimes are grouped as "crimes against the personhood of the State" (Crimini contro la personalità dello Stato) in the Second Book, First Title, of the Criminal Code.

Articles 241 to 274 detail crimes against the "international personhood of the State" such as "attempt against wholeness, independence and unity of the State" (art. 241), "hostilities against a foreign State bringing the Italian State in danger of war" (art. 244), "bribery of a citizen by a foreigner against the national interests" (art. 246), and "political or military espionage" (art. 257).

Articles 276 to 292 detail crimes against the "domestic personhood of the State", ranging from "attempt on the President of the Republic" (art. 271), "attempt with purposes of terrorism or of subversion" (art. 280), "attempt against the Constitution" (art. 283), "armed insurrection against the power of the State" (art. 284), and "civil war" (art. 286).

Further articles detail other crimes, especially those of conspiracy, such as "political conspiracy through association" (art. 305), or "armed association: creating and participating" (art. 306).

The penalties for treason-type crimes before the abolition of the monarchy in 1948 included death as maximum penalty and, for some crimes, as the only penalty possible. Nowadays the maximum penalty is life imprisonment (ergastolo).

Japan

From 1947 Japan does not technically have a law of treason.^[28] Instead it has an offence against taking part in foreign aggression against the Japanese state (gaikan zai; literally "crime of foreign mischief"). The law applies equally to Japanese and non-Japanese people, while treason in other countries usually applies only to their own citizens. Technically there are two laws, one for the crime of inviting foreign mischief (Japan Criminal Code section 2 clause 81) and the other for supporting foreign mischief once a foreign force has invaded Japan. "Mischief" can be anything from invasion to espionage. Before World War II, Imperial Japan had a crime similar to the English crime of high treason (Taigyaku zai), which applied to anyone who harmed the Japanese emperor or imperial family. This law was abolished by the American occupation force after World War II.^[29]

The application of "Crimes Related to Insurrection" to the Aum Shinrikyo cult of religious terrorists was proposed from lawyers of a defendant who was a high-ranked subordinate so that the cult leader solely would be deemed as responsible. The court rejected this argument.^[30]

New Zealand

New Zealand has treason laws that are stipulated under the Crimes Act 1961. Section 73 of the Crimes Act reads as follows:

Every one owing allegiance to the Sovereign in right of New Zealand commits treason who, within or outside New Zealand,–

(a) kills or wounds or does grievous bodily harm to the Sovereign, or imprisons or restrains her or him; or

(b) levies war against New Zealand; or

(c) assists an enemy at war with New Zealand, or any armed forces against which New Zealand forces are engaged in hostilities, whether or not a state of war exists between New Zealand and any other country; or

(d) incites or assists any person with force to invade New Zealand; or

(e) uses force for the purpose of overthrowing the Government of New Zealand; or

(f) conspires with any person to do anything mentioned in this section.^[31]

The penalty is mandatory life imprisonment, except for conspiracy and attempts, for which the maximum sentence is 14 years' imprisonment.^[32] Treason was the last capital crime in New Zealand law: the death penalty for the offence was not revoked until 1989, 28 years after it was abolished for murder.

Very few people have been prosecuted for the act of treason in New Zealand, and none have been prosecuted in recent years.^[33]

Norway

Article 85 of the Constitution of Norway states that "ny person who obeys an order the purpose of which is to disturb the liberty and security of the Storting is thereby guilty of treason against the country."^[34]

Russia

Article 275 of the Criminal Code of Russia,^[35] as updated in April 2023, defines treason as "espionage, disclosure of state secrets, or any other assistance rendered to a foreign State, a foreign organization, or their representatives in hostile activities to the detriment of the external security of the Russian Federation, committed by a citizen of the Russian Federation." The penalty is imprisonment from 12 years to life. Subsequent sections provide for further offences against state security, such as armed rebellion and forcible seizure of power.

On 17 April 2023, Russian opposition politician and anti-war activist Vladimir Kara-Murza was convicted on charges of treason and spreading disinformation about the Russian military, and sentenced to 25 years in prison.^[36] Kara-Murza's conviction is the longest sentence for political activity since the fall of the Soviet Union, and the length of the sentence is comparable only to Stalin's purges in the 1930s.^[37]

South Korea

According to Article 87 of the Criminal Code of South Korea, "a person who creates a violence for the purpose of usurping the national territory or subverting the Constitution" can be found guilty of insurrection.^[38] The punishments for insurrection are as follows:

"Ring Leader": death, imprisonment for life or imprisonment without prison labor for life.

"A person who participates in a plot, or commands, or engages in other essential activities": death, imprisonment for life, imprisonment or imprisonment without prison labor, for not less than five years.

"A person who has committed acts of killing, wounding, destroying or plundering": death, imprisonment for life, imprisonment or imprisonment without prison labor, for not less than five years.

"A person who merely responds to the agitation and follows the lead of another or merely joins in the violence": imprisonment or imprisonment without prison labor for not more than five years.

Sweden

Sweden's treason laws are divided into three parts; Högförräderi (High treason), Landsförräderi (Treason) and Landssvek (Treachery).

High treason means crimes committed with the intent to put the Nation, or parts thereof, under foreign rule or influence. It is governed by Brottsbalken (Criminal Code) chapter 19 paragraph 1.

A person who, with intent that the country or a part of it will, by violent or otherwise illegal means or with foreign assistance, be subjugated by a foreign power or made dependent on such a power, or that, in this way, a part of the country will be detached, undertakes an action that involves danger of this intent being realised is guilty of high treason and is sentenced to imprisonment for a fixed term of at least ten and at most eighteen years, or for life or, if the danger was minor, to imprisonment for at least four and at most ten years.
A person who, with intent that a measure or decision of the Head of State, the Government, the Riksdag or the supreme courts will be forced or impeded with foreign assistance, undertakes an action that involves danger of this is also guilty of high treason.^[39]

Treason is only applicable when the nation is at war and involves crimes committed with the intent of hindering, misguiding or betraying the defence of the Nation. It is governed by Brottsbalken chapter 22 paragraph 1.

A person who, when the country is at war:
1. impedes, misleads or betrays others who are engaged in the country's defence, or induces them to mutiny, disloyalty or dejection;
2. betrays, destroys or damages property of importance for the total defence;
3. obtains personnel, property or services for the enemy; or
4. commits another similar treacherous act,
is, if the act is liable to result in considerable detriment to the total defence, or includes considerable assistance to the enemy, guilty of treason and is sentenced to imprisonment for a fixed term of at least four and at most ten years, or for life.^[39]

Treachery is a lesser form of Treason, where the intended effects are less severe. It is governed by Brottsbalken chapter 22 paragraph 2.

Zdroj:https://en.wikipedia.org?pojem=Intelligence_with_the_enemy
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